16TH AMENDMENT CASE

‘Re-employment of retired judges must be stopped’

Dr Sarkar Ali Akkas, professor and founding dean of the law faculty at Jagannath University who had worked in judicial services for a few years, talks about different aspects of the Supreme Court’s judgement in the 16th amendment to the constitution case with M Hasan and Shyikh Mahdi representing New Age

New Age: What is your response to the 16th amendment case verdict?Sarkar Ali Akkas: Whatever good or bad side this judgement has, I feel that the debate that the judgement has given rise to is more important. This debate will lead us in a direction where it will be easy for us to resolve and rethink our constitutional problems and issues.

New Age: Many argue that the provision for the supreme judicial council is automatically restored by virtue of the judgement. Can the court directly restore any provision to the constitution which was repealed by the parliament? Does this place the judiciary and the legislative in a confrontational position? Sarkar Ali Akkas: In the end of the judgement, the court stated that the Article 96 provision will be restored. It has, therefore, been restored by the order of court. But I think that the provision would automatically be restored even if the court does not give such an order. For this, the parliament does not need to enact a law to restore the supreme judicial council provision. Why? This is because the supreme judicial council had previously been there in the constitution until the parliament replaced it through a constitutional amendment. When the Supreme Court scrapped the amendment, it automatically reinstates the provision for the supreme judicial council as it had been there before.

New Age: Even in the post-Masdar Hossain situation, the government, the executive that is, still has an effective control over the lower judiciary. In your opinion, should the parliament have control of any kind over the Supreme Court as envisaged in the original constitution?Sarkar Ali Akkas: As a matter of fact, the Supreme Court should have control over both the tiers of the judiciary, the lower court and the Supreme Court. But the control should not be exclusive. Whenever exclusive control comes in one hand, a greater risk of misusing power arises. In my view, the current structure where the subordinate judiciary is controlled by both the Supreme Court and the law ministry is somewhat reasonable although some could call it a ‘double rule’. There is, indeed, need for some regulations to prescribe the extent of control that might be exercised by each of them but the control must be exercised by both sides although a balance has to be ensured. It might be argued that this approach might contradict with the notion of the separation of powers, but there is a saying in political science that a complete separation of powers is neither possible nor practicable. So, a complete separation of the subordinate judiciary from the executive may not be practicable. I think that there must be a balance between the two.

New Age: Ruling party leaders have not raised any objection to the issue of the supreme judicial council in the 5th amendment case in 2011. How do you now assess the statements of the politicians who are talking against the judgement?Sarkar Ali Akkas: The popular narrative that the government which had no objection to retaining the supreme judicial council in 2011 cannot now have objection about it seems irrational to me. People learn from their experiences. An issue seen in a particular perspective today may be seen in an entirely different perspective tomorrow. Then again, I do not assert that the amendment was flawless. The legislature intended to revert to the original provisions of the 1972 constitution, which was scrapped by the Supreme Court. Unfortunately, all the discussions about the verdict centre around some observations in the judgement which, I think, keeps us apart from thinking to the point to resolve constitutional issues and predicaments.

New Age: Will the ongoing culture of political criticism of the judgement harm the rule of law and the separation of powers? How can this culture of unrestrained statements by ministers and ordinary people about a verdict can be controlled? Sarkar Ali Akkas: Constructive criticism should be welcomed as long as it relates to the essence of a judgement and the dignity and honour of the Supreme Court are not harmed. Constructive criticism of court orders and judgements is in practice in many countries. I think that the judiciary should rather welcome constructive criticism so that it could reassess its own decisions and consider any possible corrections, if any, as no one is above mistake. But the culture of vilifying a judge individually or the judiciary as a whole with malicious intention is unacceptable.

New Age: Is there any part in the judgement that you think should be reconsidered for the interest of greater good? Do you think the Appellate Division should exercise the review authority in any manner? Sarkar Ali Akkas: In my view, the immaturity of the parliament has been shown as a main factor behind the annulment of the amendment and Article 70 of the constitutions is described as the driving force. But I was surprised not to have found any certain and firm observations on Article 70 in this judgement. I think that after the 15th amendment to the constitution, Article 70 has become more workable as the option to vacate parliamentary seats has been reduced to voting against the party whereas earlier, abstention from voting could amount to the vacating of the seat. A member of parliament can now, therefore, abstain from voting in the house without the fear of losing the seat. Furthermore, a proposed bill in the parliament does not necessarily represent the party; it rather represents the government. It enables members of parliament to smoothly raise objection to any bill in the house. A crucial aspect of the verdict could have been the interpretation of ‘voting against party.’ Sadly, we do not find any such constructive and critical discussion.

New Age: Four of the seven judges refrained from commenting on Article 116 under which the lower judiciary is kept under the control of the government. Being the proponents of judicial independence, some of the judges kept silent about Article 116. How do you evaluate this? Do you think that the overall independence of the judiciary has been indirectly overlooked in this judgement?Sarkar Ali Akkas: The issue was exclusively related to Article 96, not Article 116. It seems that Article 116 came in the scene when the chief justice mentioned this in his observation while he was talking about the independence of the judiciary. I think that the other judges kept silent because the state was not given the opportunity to put forward its arguments. The foundation of the judiciary is based on public confidence and it helps the judiciary to take pride in its integrity and independence and also inspires judges from getting into any misconduct. One of the challenges for independence of the judiciary is the practice of the re-employment of retired judges. For the sake of judicial independence, the practice of the re-employment of retired judges must be stopped. When a sitting judge stands the chance of being re-employed in an office of profit, his idea of independence might take a different turn. I think that it is high time we stopped this unhealthy practice if we really care about the independence of the judiciary in accordance with the basic structure of the constitution.

New Age: In the midst of this ongoing rift between the judiciary and the executive regarding the removal of judges, can you suggest any formula where both the parties can participate in removing a judge?Sarkar Ali Akkas: I already have mentioned that neither side should hold exclusive power regarding the removal of judges. Besides, the process of the supreme judicial council is not flawless because this forum is exclusively composed of judges. The issue of evaluating judges by judges themselves might not seem transparent. Let me give you an example of the Commission on Judicial Performance of California. This is an independent state agency established by the state constitution, which is responsible for investigating complaints of judicial misconduct, incapacity and discipline of the judges. The commission is composed of 11 members, including three judges, two attorneys, and six representatives of citizens, where the citizens are selected and appointed by the governor, the senate committee and the speaker of the state assembly. This seems to be a very transparent and participatory process. Interestingly, this commission has jurisdiction over former judges for conducts before their retirement or resignation. Another example is the judicial service commission of New South Wales, Australia. As an independent statutory organisation, this commission works as the part of the judicial arm of the government. On receiving complaints against any judge, the commission starts investigation. If there is substantial proof in favor of the complaint, it is then forwarded to the conducts division, a division composed of judges. This forum also holds its own investigation and then submits the report to the parliament. The parliament then decides the fate of the judge by voting and adopting resolutions. If the removal of the judge is decided, the governor orders and executes the removal. In this mechanism, every organ of the state cooperates with each other simultaneously, which gives a better result. In my view, we can opt for any of these two options.

New Age: The legislature wants to reinstate the original Article 96 in the constitution, but it shows reluctance at the original Article 116. Conversely, the judiciary seeks to pursue original Article 116 but turns away from the original Article 96. What do you think of this?Sarkar Ali Akkas: No confidence is the main reason here. Sadly, neither the judiciary nor the executive has enough confidence in each other. Previous bitter experiences may be the reason for such no confidence. There could be a situation were both the parties want to get back to original constitution or neither party wants it. But we do not see that.

New Age: How do you see the urgency of the removal procedure of judges by the parliament where there is still a vacuum of law regarding the appointment of judges? As stated in the judgement: ‘that non-framing of any law pursuant to Article 95(2)(c) of the constitution has virtually given an upper hand to the executive in the matter of appointment of the judges of the Supreme Court’. How do you evaluate this statement? Sarkar Ali Akkas: This is a very important topic to be discussed in our legal arena. Even the judgement could not make it clear. Article 95 says — a person cannot be qualified for appointed as a judge unless he is a citizen of Bangladesh ‘and’ has been an advocate for 10 years of the SC [95(2)(a)], or has been in judicial service for ten years[95(2)(b)], or has such qualifications as may be prescribed by law for such appointment as a judge of SC[95(2)(c)]. Each of these additional qualifications after the main qualification, ‘citizen of Bangladesh’, is an independent one. Look at the word ‘or’, not necessarily ‘and’ is there. The word ‘or’ is kept there so that besides advocates and judicial officer(s), a third party can also become a judge of the Supreme Court. The third qualification has not been prescribed by our parliament yet. But there is a misconception among legal experts that the law which is to be enacted under Article 95(2)(c) will be an additional one, prescribing qualifications to be assessed with previous qualifications as stated under (a) or (b). This is a wrong conception. Article 95(2)(c) denotes us to a new and independent qualification which may be prescribed by the parliament through a law. Even our Supreme Court in this judgement could not get out of this misconception. Article 95(2)(a) says about lawyers, Article 95(2)(b) says about subordinate judges and Article 95(2)(c) talks about new qualification which the parliament may prescribe through a law! This new qualification may include legal research experience or experience of teaching law. For example, in Nepal, a legal researcher can be a judge; in some other countries, including Nepal and Sri Lanka, a law teacher can also become a judge. Article 95(20(c) talks much about qualification (new) and less about appointment. Yes, the government can make any policy or law prescribing the appointment procedure independent of Article 95(2)(c). But Article 95(2)(c) has nothing to give an upper hand to the executive in the matter of the appointment of the judges of the Supreme Court.

Dr Sarkar Ali Akkas, a teacher of law in Jagannath University, worked in judicial services for a few year after receiving his bachelor’s and masters’s degree in law at the University of Rajshahi. He has a PhD degree on the independence of the judiciary from Wollongong University of Australia.